Opinion
NO. 4:02-CV-24-A
April 9, 2002
MEMORANDUM OPINION and ORDER
Came on for consideration the motions of plaintiff, Irene Hernandez, to remand and for leave to file an amended complaint. Having considered the motions, the court finds that the motion for leave to amend should be dismissed at moot and that the motion to remand should be granted.
I. Nature and History of the Litigation
This action was instituted in the district court of Tarrant County, Texas, 17th Judicial Division by plaintiff's original petition (the "petition") which alleges a cause of action against defendant Jack in the Box, Inc. ("Jack in the Box") for negligence. The petition alleges that on October 21, 2000, plaintiff was working as an employee for Jack in the Box. While working at the drive-through window, her foot became entangled in a drain-hole that had been left uncovered in the center of the floor directly behind her work area. As a result, plaintiff suffered injury to her knee and shoulder.
Plaintiff filed a first amended petition (the "amended petition") on January 14, 2002, with the state court. In the amended petition, plaintiff joined Tyrone Johnson ("Johnson") as an additional defendant and alleged a negligence cause of action against him. Specifically, plaintiff alleges that Mr. Johnson removed or caused to be removed a mat that had been covering the open drain-hole and that her injuries were the proximate result of that action. Mr. Johnson was served with the amended petition on January 16, 2002.
By a notice of removal filed with this court on January 14, 2002, Jack in the Box removed the action. Jack in the Box's notice of removal was initially stricken for failure to include a certificate of interested parties and subsequently was refiled on January 18, 2002. Jack in the Box alleges that this court has subject matter jurisdiction under 28 U.S.C. § 1332(a) because (1) the amount in controversy exceeds $75,000 (exclusive of interest and costs) and (2) the parties at the time the notice of removal was filed were citizens of different states. The notice of removal does not reference the allegations contained in the amended petition.
On January 25, 2002, plaintiff filed her motion to remand on grounds that (1) the notice of removal was untimely, (2) this court lacks jurisdiction as complete diversity exists between the parties, and (3) the notice of removal does not comply with the requirements of 28 U.S.C. § 1446, the Federal Rules of Civil Procedure, and the local rules of this court. The thrust of the motion is that Johnson was validly joined as a party while the matter was pending in the state court and that Johnson's presence in the suit bars diversity jurisdiction as both Johnson and plaintiff are citizens of Texas. Plaintiff asserts that she has a valid cause of action against Johnson for negligence and that he is not a sham defendant joined by plaintiff for the sole purpose of avoiding and defeating removal. Jack in the Box argues that Johnson was fraudulently joined to defeat diversity jurisdiction.
Also on January 25, 2002, plaintiff filed a motion for leave to file an amended complaint. The proposed amended complaint tracks the amended petition filed by plaintiff in the state court on January 14, 2002.
II. The Filing of the Amended Petition in State Court
Before reaching the issue of fraudulent joinder, the court must determine whether joinder has, in fact, occurred. On January 14, 2002, plaintiff filed her amended petition with the state court. Under the Texas Rules of Civil Procedure, such an action constitutes a valid amendment of the pleadings. See Tex. R. Civ. 2. 63.
In response, Jack in the Box argues that plaintiff's amended petition was not filed until after the action was removed to federal court. While the notice of removal was originally filed with the clerk of this court on January 14, 2002, mere filing in federal court and service on plaintiff does not sever the state court's jurisdiction. The removal statute explicitly directs the moving party to promptly file a copy of the notice of removal with the state court. See 28 U.S.C. § 1446(d). Until that occurs, the state court retains jurisdiction. See Anthony v. Bunyan, 76 F.3d 210, 214 (8th Cir. 1996); Hampton v. Union Pacific R.R. Co., 81 F. Supp.2d 703, 707 (E.D. Tex. 1999). As of January 24, 2002, Jack in the Box had not filed the required document with the state court. See Remand App. at 3. Jack in the Box's filings with this court do not indicate when, or even if, it has made the required filing with the state court. Therefore, the state court had jurisdiction to entertain plaintiff's amended petition at the time it was filed. Plaintiff's petition having been validly amended under the jurisdiction of the state court, her motion for leave to amend in this court is moot.
While defendant has not adduced evidence that it filed the notice of appeal with the state court, plaintiff's reply brief states that such action was taken on February 5, 2002.
III. The Motion to Remand is Granted
The presence of Johnson as a defendant will be disregarded for removal purposes if his joinder was fraudulent, but:
The burden of persuasion placed on those who cry fraudulent "joinder" is indeed a heavy one. In order to establish that an in-state defendant has been fraudulently joined, the removing party must show either that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court; or that there has been outright fraud in the plaintiff's pleading of jurisdictional facts . . .B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981); see also Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 259 (5th Cir. 1995); Carriere v. Sears, Roebuck Co., 893 F.2d 98, 100 (5th Cir. 1990); Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983). Whether a case has been properly removed despite the presence in the suit of a resident defendant is to be determined by reference to the plaintiff's state court pleadings. See Tedder v. F.M.C. Corp., 590 F.2d 115, 116-17 (5th Cir. 1979). If there is no reasonable basis for predicting that state law might impose liability on the resident defendant under the facts alleged, then the claim is deemed fraudulent and its presence will not prevent removal. See id. at 117. The court can consider affidavits and other evidentiary material in making such a prediction. See B., Inc., 163 F.2d at 549. All factual allegations are evaluated in the light most favorable to plaintiff and all uncertainties as to the current state of controlling substantive law are resolved in favor of the plaintiff.See id.; Cavallini, 44 F.3d at 259; Carriere, 893 F.2d at 100.
Under Texas law, a manager, such as Johnson, "may be liable individually and in his capacity as agent and servant of the [employer] if guilty of affirmative acts of negligence which proximately caused his fellow employee's injury." O.P. Leonard Trust v. J.C. Hare, 305 S.W.2d 833, 835-36 (Tex.Civ.App. Texarkana 1957, writ dism'd); see also McIntire v. Rollins, Inc., 888 F. Supp. 68, 69 (S.D. Tex. 1995); Maxey v. Citizens Nat'l Bank, 507 S.W.2d 722, 725 (Tex. 1974). In the present case, plaintiff alleges that Johnson took the affirmative action of removing the mat and creating the dangerous condition which proximately caused her injuries. Pursuant to O.P. Leonard Trust, such allegations state a valid cause of action under Texas law. The cases cited by Jack in the Box are distinguishable as each lacks specific allegations of wrongdoing on the part of the instate defendant. See e.g., Baden v. R.J.R. Nabisco, Inc., 224 F.3d 382, 392 (5th Cir. 2000) (noting that complaint lacks any specific allegations of fraud against in-state defendants); Briggs v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir. 1999) (noting that in-state defendant was not served and that pleadings contained no actionable facts specific as to him); Carriere, 893 F.2d at 101 (finding allegations insufficient to establish intensional tort under Louisiana workers compensation statute; McIntire, 888 F. Supp. at 69 (noting lack of factual allegations as to in-state defendant's role). Jack in the Box also submitted an affidavit signed by Johnson that largely focuses on the irrelevant issues of whether he pushed plaintiff and whether he was present at the time of her injury. The affidavit does not specifically address plaintiff's allegation that Johnson removed the mat and exposed the hazard. The court finds that Jack in the Box has not shown that there is no possibility that plaintiff will be able to establish a cause of action against Johnson under state law. Therefore, Johnson was not fraudulently joined, complete diversity does not exist, and the action must be remanded.
IV. ORDER
For the foregoing reasons,
The court ORDERS that:
1. Plaintiff's motion for leave to amend be, and is hereby, dismissed as moot; and
2. The above-captioned action be, and is hereby, remanded to the state court from which it was removed.